Federal appeals court finds school’s ban on rubber fetus dolls constitutional

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A three-judge panel of the U.S. Court of Appeals for the 10th Circuit has ruled unanimously that a New Mexico school district acted constitutionally when it prohibited five students from handing out two-inch “fetus dolls” with pro-life messages attached.

The essential part of Monday’s ruling in Taylor v. Roswell Independent School District is that Roswell, N.M., school district officials reasonably predicted that the distribution of the fetus dolls would cause significant disruption because, in fact, a prior distribution had proven disruptive.

The judges reasoned that the district could deny official approval before further fetus-doll distributions without violating the students’ First Amendment rights.

The court also did not buy the argument that the decision to stop the handout was rooted in religious discrimination.

The student plaintiffs are — or once were — associated with a local religious youth group called Relentless, which is allied with an evangelical, strongly anti-abortion Christian flock in Roswell called Church on the Move, reports Education Week.

Prior to the problems with the fetus dolls, members of Relentless had regularly evangelized on school grounds and given away various perks including hot chocolate, candy canes, “affirmation rocks” emblazoned with Bible verses and, on one occasion, over 200 McDonald’s chicken salad sandwiches.

School officials basically looked the other way, citing a pre-approval policy.

Jan. 29, 2010 is a day that will surely live in infamy in Roswell as the day that Relentless tried to provide give away about 2,500 rubber fetus dolls at Roswell High School and Goddard High School. Religious-themed cards described each doll as “a 12-week-old baby,” notes Education Week. The two-inch size was chosen because it is equivalent to the size of a human fetus 12 weeks into the gestation period.

Things did not go well.

While school officials stopped the dissemination of fetus dolls after roughly 300 of them had been handed out, many of the dolls that did get distributed saw exceedingly sad ends.

Teachers at both high schools complained that the dolls were hampering classroom activities. Some students hurled fetus dolls across classrooms. Other students chucked the heads around like rubber balls or used them in bawdy ways. Still other dolls ended up plugging toilets as well as caked with hand sanitizer and set ablaze. In an honors freshman English class, a test was canceled because students were calling each other names and arguing over abortion.

After the school district denied requests by Relentless-affiliated students to give away a second batch of dolls, the students sued, alleging that their constitutional rights to free speech, free exercise of religion and equal protection were violated.

At the district level, the court granted summary judgment to the school district.

In upholding that ruling, the Denver-based 10th Circuit appeals panel noted that the fetus doll giveaway “conveyed a political and religious message and would likely merit First Amendment protection outside the school context.” However, schools can prevent expression when they reasonably forecast that it will be disruptive.

In this case, the court held, the school made such a reasonable forecast.

“The sheer number of items … created strong potential for substantial disruption,” the court said, as Education Week notes. “Furthermore, these fetus dolls were made of rubber — a material that could easily be, and was, pulled apart, bounced against walls, and stuck to ceilings. The dolls’ small size made them tempting projectiles and toilet-clogging devices.”

The judges also observed a difference between rubber fetus dolls and, say, a t-shirt or an armband.

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